NATHANIEL JOHNSON, JR., PETITIONER V. UNITED STATES OF AMERICA
No. 87-1983
In the Supreme Court of the United States
October Term, 1988
On Petition For A Writ Of Certiorari To The United States Court Of
Military Appeals
Brief For The United States In Opposition
TABLE OF CONTENTS
Question Presented
Opinions below
Jurisdiction
Statement
Argument
Conclusion
OPINIONS BELOW
The order of the Court of Military Appeals affirming petitioner's
conviction (Pet. App. 1a) is reported at 26 M.J. 222. The order of
the Army Court of Military Review (Pet. App. 2a-3a) is not officially
reported.
JURISDICTION
The judgment of the Court of Military Appeals was entered on April
4, 1988. The petition for a writ of certiorari was filed on June 3,
1988. The jurisdiction of this Court is invoked under 28 U.S.C.
(Supp. IV) 1259(3).
QUESTION PRESENTED
Whether Articles 16(1)(A) and 52(a)(2) of the Uniform Code of
Military Justice, 10 U.S.C. (& Supp. IV) 816(1)(A) and 852(a)(2),
violate the Constitution by permitting a defendant to be convicted by
the two-thirds vote of a court-martial panel containing as few as five
members.
STATEMENT
Petitioner, a member of the United States Army, was convicted by
court-martial of premeditated murder and the unlawful possession of a
murder weapon, in violation of Articles 118 and 134 of the Uniform
Code of Military Justice (UCMJ), 10 U.S.C. 918 and 934. Petitioner
was sentenced to confinement for life, a reduction in pay grade,
forfeitures of all pay and allowances, and a dishonorable discharge.
/1/ The convening authority reviewed the case and approved the
sentence. The Army Court of Military Review affirmed the findings and
sentence (Pet. App. 2a-3a). the Court of Military Appeals summarily
affirmed (Pet. App. 1a).
1. Petitioner was convicted of the premeditated killing of Sergeant
Aaron Britton. The facts were not in dispute; petitioner's sworn
confession (GX 5) was admitted at trial without defense objection (Tr.
17, 216-218). The defense claim was that petitioner was guilty only
of voluntary manslaughter (Tr. 279).
At 9:30 p.m. on December 5, 1987, petitioner was in his barracks
room at Fort Eustis in Virginia. Sergeant Britton entered
petitioner's room and accused petitioner of spreading the rumor that
Sergeant Britton was dating Private Tracy Johnson (Tr. 165; GX 5).
/2/ Petitioner denied the charge. The incident ended with Sergeant
Britton telling petitioner that if he continued to spread the rumor,
they would "handle it like men" (Tr. 165-166, 167; GX 5).
Shortly thereafter, Sergeant Britton arranged for petitioner to be
called out of the room purportedly to answer a telephone call (Tr.
171; GX 5). The lights in the hall outside the room were turned out
as part of the plan (Tr. 171). After answering the phone, petitioner
was attacked by Sergeant Britton, and perhaps Privates Mayrant and
Conners (Tr. 171-173; GX 5). Petitioner and Sergeant Britton fell to
the floor and wrestled until petitioner was able to break free (Tr.
172; GX 5). Sergeant Britton then went to the opposite end of the
hall, while petitioner returned to his room (Tr. 135, 151, 172; GX
5).
By his own admission, petitioner was angry (GX 5). He "stopped for
awhile" and thought to himself (ibid.). Then, after "look(ing) into
the mirror and t(aking) a deep breath," he grabbed his survival knife
and went to find Sergeant Britton (ibid.). Petitioner walked quickly
up the hallway, /3/ turning on lights and repeating, "I don't play
that shit, they don't do that to me" and "I'm going to kill him" (Tr.
110, 125, 136, 152-154, 172). Specialist Allen stopped petitioner and
suggested that they discuss the matter (Tr. 110-111). Petitioner
replied, "no, I'm gonna get him" (Tr. 111). /4/ Petitioner walked
past Allen toward Sergeant Britton (ibid.). As he approached the
sergeant, petitioner thrust his knife forward, piercing Sergeant
Britton's heart and killing him (Tr. 112, 152-154; GX 9).
2. Seven potential panel members /5/ were detailed to petitioner's
court-martial (Tr. 27). One was challenged for cause by the
government, since she had prior knowledge of the case (Tr. 87-88).
Another was peremptorily challenged by the government (Tr. 89). The
defense did not challenge any of the remaining members (Tr. 88-89).
/6/ The defense moved the trial judge to empanel six members to hear
the case and to determine whether the verdict was unanimous (Tr. 91,
234-237, 320-322). The trial judge denied both motions (Tr. 91-92,
323-324).
ARGUMENT
In Ballew v. Georgia, 435 U.S. 223 (1978), the Court held that the
Sixth and Fourteenth Amendments require that at least six persons
serve on the jury in serious state criminal cases. In Burch v.
Louisiana, 441 U.S. 130 (1979), the Court ruled that the verdict by
such a six-person jury must be unanimous. Relying on Ballew and
Burch, petitioner maintains that his conviction by a potentially
nonunanimous five-member court-martial panel violates the Due Process
Clause of the Fifth Amendment. /7/ That claim does not warrant review
by this Court, for several reasons. /8/
1. There is no conflict among the circuits on the question
presented by petitioner. The Court of Military Appeals has
consistently rejected the contention that the court-martial system
adopted by Congress is invalid under Ballew v. Georgia, supra, and
Burch v. Louisiana, supra, on the ground that a defendant may be
convicted by a five-member court-martial panel, or by the two-thirds
vote of a panel of any size. United States v. Mason, 24 M.J. 127, 128
& n.* (C.M.A. 1987), cert. denied, No. 86-1935 (Oct. 9, 1987); United
States v. Hutchinson, 17 M.J. 156, 156-157, 18 M.J. 281 (C.M.A.),
cert. denied, 469 U.S. 981 (1984); see United States v. McClain, 22
M.J. 124, 128 (C.M.A. 1986); United States v. Kemp, 22 C.M.A. 152,
154, 46 C.M.R. 152, 154 (1973) (the Sixth Amendment cross-section
requirement is inapplicable to court-martial panels). The decisions
of that court are consistent with the decision of the only federal
court appeals to address this question in light of Ballew and Burch.
Mendrano v. Smith, 797 F.2d 1538, 1544-1547 (10th Cir. 1986).
2. In addition, the decision below is also correct. The statutes
governing the number of members on court-martial panels and the number
that must concur to return a verdict do not offend either the Fifth or
Sixth Amendments to the Constitution.
a. Petitioner seeks to impose on courts-martial the same
requirements that Art. III, Section 2, Cl. 3, and the Sixth Amendment
impose in civilian cases. It is well settled, however, that the right
to a jury trial guaranteed by those provisions does not apply to
court-martial proceedings. Ex parte Milligan, 71 U.S. (4 Wall.) 2,
123 (1866); Dynes v. Hoover, 61 U.S. (20 How.) 65, 79 (1858). /9/
The Fifth Amendment specifically exempts "cases arising in the land or
naval forces" from the requirement of an indictment by a grand jury
for serious crimes. /10/ By drafting the Fifth Amendment in that
manner, "the framers of the constitution, doubtless, meant to limit
the right to trial by jury, in the sixth amendment, to those persons
who were subject to indictment or presentment in the fifth." Ex parte
Milligan, 71 U.S. (4 Wall.) at 123. As the Court explained in Ex
parte Quirin, 317 U.S. 1, 39 (1942), neither Section 2 of Article III
of the Constitution nor the Sixth Amendment requires a trial by jury
in the military, because those provisions were intended "to preserve
unimpaired trial by jury in all those cases in which it had been
recognized by the common law * * *, but not to bring within the sweep
of the guaranty those cases in which it was then well understood that
a jury trial could not be demanded as of right." Accordingly, because
petitioner had no Article III or Sixth Amendment right to a trial by a
petit jury, he also had no right under those provisions to a unanimous
vote by a jury composed of at least six persons.
b. Petitioner's claim fares no better under the Due Process Clause.
The Constitution authorizes Congress to "make Rules for the
Government and Regulation of the land and naval Forces" (Art. I,
Section 8, Cl. 14) and grants Congress "primary responsibility for the
delicate task of balancing the rights of servicemen against the needs
of the military." Solorio v. United States, No. 85-1581 (June 25,
1987), slip op. 12; see also Burns v. Wilson, 346 U.S. 137, 140
(1953) (plurality opinion). Congress's judgment about the composition
and voting procedures of a court-martial is entitled to special
deference, not only because "(t)he constitution of courts-martial,
like other matters relating to their organization and administration *
* *, is a matter appropriate for congressional action" (Whelchel v.
McDonald, 340 U.S. 122, 127 (1950) (citations omitted)), /11/ but also
because the practices at issue have been carried forward from the
earliest days of our nation. See Solorio v. United States, slip op.
7-11.
The nation's first military law was the American Articles of War of
1776. 1 & 2 W. Winthrop, Military Law and Precedents 46, App. 961-971
(2d ed. 1920). Section 14, Art. 1, provided that at least 13 officers
would serve on general courts-martial (i.e., a president and 12
members). 5 J. Continental Cong. 800 (W. Ford ed. 1906); 1 & 2 W.
Winthrop, supra, App. 967. In 1782, Congress substantially adopted
the English practice for naval courts-martial of detailing five
officers to a court-martial in a capital case and three in a
noncapital case. 22 J. Continental Cong. 325 (G. Hunt ed. 1914).
Four years later, when large numbers of desertions and an
understaffing of officers had become a particularly acute problem for
commanders at frontier outposts, Congress amended the American
Articles of War to permit a quorum of five officers at a general
court-martial and three officers at regimental courts-martial when 13
members could not be detailed "without manifest injury to the
service." 30 J. Continental Cong. 145, 316 (J. Fitzpatrick ed. 1786);
1 & 2 W. Winthrop, supra, at 22-23, App. 972; Van Loan, The Jury, the
Court-Martial, and the Constitution, 57 Cornell L. Rev. 363, 384-385
n.118 (1972). That language was merely advisory to the officer
responsible for appointing the members of a court-martial, however,
and his decision to select a small number of members was both lawful
and conclusive. Martin v. Mott, 25 U.S. (12 Wheat.) 19, 34-35 (1827).
/12/
Congress endorsed that practice throughout the nineteenth century
and the early part of the twentieth century when revising the Articles
of War. 1 & 2 W. Winthrop, supra, at 77, 159; American Articles of
War of 1806, ch. 20, Art. 64, 2 Stat. 367, reprinted in 1 & 2 W.
Winthrop, supra, App. 981-982; American Articles of War of 1874, Art.
75, reprinted in 1 & 2 W. Winthrop, supra, App. 992; American
Articles of War of 1916, ch. 418, Art. 43, 39 Stat. 657. In the
aftermath of World War II, congress replaced the Articles of War with
the Uniform Code of Military Justice. In so doing, Congress retained
the requirement of a quorum of five members for general
courts-martial, as well as the convening authority's discretion to
detail a greater number of panel members, the system that exists
today. Art. 16, UCMJ, 10 U.S.C. (& Supp. IV) 816.
History also shows that unanimity has never been a feature of
court-martial proceedings. /13/ The American Articles of War of 1776,
like their predecessor, the British Articles of War, /14/ required
only a simple majority vote to convict a defendant, and a two-thirds
majority to sentence him to death. Articles of War of 1776, Section
14, Art. 5, reprinted in 5 J. Continental Cong. 801 (W. Ford ed.
1906); 1 & 2 W. Winthrop, supra, at 377, App. 968; A. Macomb, A
Treatise on Martial Law and Courts-Martial 144 (1809). Congress
thereafter repeatedly endorsed similar majority vote requirements in
statutes passed in 1799, 1800, 1806, and 1874. /15/ Throughout the
nineteenth century, a majority vote of the panel members was
sufficient to convict a defendant of a noncapital crime, with a
two-thirds vote sufficient to impose capital punishment. 1 & 2 W.
Winthrop, supra, at 377; Stout v. Hancock, 146 F.2d 741, 742-743 (4th
Cir. 1944), cert. denied, 325 U.S. 850 (1945).
Early in the twentieth century, Congress modified the voting
requirements for Army courts-martial, requiring a unanimous vote to
impose the death penalty or to convict a defendant of a crime carrying
a mandatory death penalty. Act of June 4, 1920, ch. 227, Art. 43, 41
Stat. 795-796; Stout v. Hancock, 146 F.2d at 741-743. For all other
crimes, conviction still required only a two-thirds majority. At the
same time, the voting requirements for courts-martial in the Navy were
left untouched. Thus, only a simply majority was necessary to convict
a sailor, and a two-thirds majority to impose the death penalty. See
H.R. Rep. 491, 81st Cong., 1st Sess. 26, 491, 74 (1949). When
considering the UCMJ following World War II, Congress rejected the
suggestion that the unanimous vote requirement be extended to
noncapital crimes. /16/ and instead adopted Article 52 of the UCMJ,
10 U.S.C. 852, in substantially its present form.
Congress has modified the Code on more than 20 occasions since
Articles 16 and 52 were enacted, but it has never changed the
composition or voting procedures for non-capital cases tried by a
court-martial. /17/ In sum, it is clear that the five-member,
two-thirds majority vote procedures in Articles 16(1)(A) and 52(a)(2)
of the UCMJ, 10 U.S.C. (& Supp. IV) 816(1)(A) and 852(a)(2), represent
the longstanding and considered judgment of Congress and the President
on the proper balance to be struck between the rights of an individual
serviceman and the special needs of the armed forces.
That judgment is also reasonable. The essential function of the
military is "to fight or be ready to fight wars should the occasion
arise." United States ex rel. Toth v. Quarles, 350 U.S. 11, 17 (1955).
When servicemembers are diverted from that function by the need to
serve as panel members, "the basic fighting purpose of armies is not
served." Ibid. Congress therefore has determined that the diversion
of resources necessary to conduct the retrials that would result from
a unanimous verdict requirement was too high a price to pay in terms
of lost military preparedness. Accordingly, Congress provided for
only one trial, at which a two-thirds majority vote would decide the
outcome.
That system does not exclusively favor the prosecution. The rule
that no retrials are permitted in the military if there is a "hung
jury" provides a defendant with "a significant recompense" for the
disadvantages of a nonunanimous verdict. Mendrano v. Smith, 797 F.2d
at 1546. Moreover, as a safeguard against an innaccurate verdict by
court-martial panel, the military courts have required the prosecution
independently to prove the defendant's guilt before a court of
military review. The standard of review applied by a court of
military review to determine whether the evidence is sufficient to
support the defendant's conviction is substantially different from,
and more generous to, military defendants than the standard employed
by civilian appellate courts. A civilian appellate court does not
inquire whether it believes that the evidence is sufficient to prove
the defendant's guilt beyond a reasonable doubt, but instead only
determines "whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt."
Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis on original).
By contrast, a court of military review must independently review the
record and be convinced of the correctness of the court-martial
panel's findings, including its ultimate finding that the accused is
guilty, before the findings may be upheld. Art. 66(c), UCMJ, 10
U.S.C. 866(c). /18/
In addition to the more exacting standards of appellate review, the
military defendant enjoys greater rights than his civilian counterpart
at the pretrial and post-trial stages of the proceedings. No charge
may be referred to a general court-martial for trial without an
impartial investigation into the evidence supporting the charge. Art.
32, UCMJ, 10 U.S.C. 832. This procedure includes the right of the
accused to be represented by counsel. A convening authority may not
refer a charge to a general court-martial for trial without
independently assessing the sufficiency of the evidence. Art. 34(a),
UCMJ, 10 U.S.C. (Supp. IV) 834(a). After trial, the convening
authority receives a report of the trial, and he may disapprove
findings of guilt or reduce the sentence as a matter of clemency or as
a prerogative of command. Art. 60, UCMJ, 10 U.S.C. (& Supp. IV) 860.
To assist the convening authority, the accused has the right to submit
legal arguments and other matters with respect to the findings and
sentence. Ibid. See generally, United States v. Boland, 1 M.J. 241
(C.M.A. 1975); Moyer, Procedural Rights of the Military Accused:
Advantages Over a Civilian Defendant, 22 Me. L. Rev. 105 (1970). In
light of these special protections against the risk of inaccurate
verdicts in the military justice system, petitioner has not made the
"extraordinarily weighty" case necessary to overcome the longstanding
congressional judgment that the court-martial system satisfied due
process requirements. Middendorf v. Henry, 425 U.S. 25, 44 (1976).
c. The lead opinion in Ballew v. Georgia, supra, relied heavily on
empirical studies of the group dynamics of juries in ruling that a
six-person jury was required. 435 U.S. at 231-243 (opinion of
Blackmun, J.). Much the same reasoning formed the basis for the
ruling in Burch v. Louisiana that a six-person jury must be unanimous.
441 U.S. at 138. Petitioner argues (Pet. 8-9) that the studies
considered in Ballew should also inform the decision here. Those
studies all involved civilian juries, however, and there are no
comparable studies addressing the dynamics of court-martial panels.
In light of the important functional and compositional differences
between civilian juries and court-martial panels, the studies on which
this Court relied in Burch and Ballew are not immediately applicable
to the military setting. United States v. Guilford, 8 M.J. 598,
601-602 (A.C.M.R. 1979), petition denied, 8 M.J. 242 (C.M.A. 1980).
/19/ The question whether studies of the type considered in Ballew are
sufficiently compelling, when applied to the military setting, to
justify a change in court-martial procedures is one that should be
left to Congress.
3. Petitioner suggests (Pet. 4, 11-12) that this Court's recent
decision in Solorio v. United States, supra, requires a different
result. He argues that the procedures at issue may have been
permissible before Solorio, but are no longer justified now that the
Court has altered the service-connection restriction on
courts-martial. That argument is misdirected.
The Solorio decision did not abolish the service-connection
requirement; it merely reaffirmed the traditional principle that an
offense is sufficiently service-connected for purposes of
court-martial jurisdiction if the defendant is a servicemember at the
time of the commission of the crime and at trial. The effect of
Solorio is not to convert the military justice system into one closely
analogous to a civilian system, in which Fifth and Sixth Amendment
principles apply just as they do in the civilian courts. Solorio
simply restored court-martial jurisdiction to a class of cases, not
covered during the 18-year period following O'Callahan v. Parker, 395
U.S. 258 (1969), consisting of certain cases in which the crimes were
committed by servicemembers off the premises of military bases. The
rules regarding the number and voting requirements of court-martial
panels were adopted prior to the Court's decision in O'Callahan, not
during the period between O'Callahan and Solorio. Moreover, there is
no historical or logical connection between the service-connection
restriction, as applied in O'Callahan, and the court-martial rules at
issue here. The decision in Solorio therefore has no effect on the
validity of those rules in the military justice system.
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
CHARLES FRIED
Solicitor General
NORMAN G. COOPER
Col., JAGC, USA
GARY F. ROBERSON
Lt. Col., JAGC, USA
PATRICK D. O'HARE
Capt. JAGC, USA
GARY L. HAUSKEN
Capt., JAGC, USA Appellate Government Counsel Government
Appellate Division United States Army Legal Services Agency
JULY 1988
/1/ The convening authority elected to refer petitioner to a
court-martial that was not authorized to impose the death penalty (Tr.
10). Manual for Courts-Martial, United States-1984 (Manual), Rules
for Court-Martial 201(f)(1)(A)(iii) and 601(c). The minimum
punishment for premeditated murder is confinement for life. Art. 118,
UCMJ, 10 U.S.C. 918. Although a two-thirds vote was necessary to
convict petitioner, a three-fourths vote was necessary to impose a
sentence of life imprisonment, even though that penalty was mandatory
under the UCMJ. Rule 1006(d), Manual. That difference is immaterial
in this case, however, because four of the five panel members had to
concur in the judgment regardless of whether a two-thirds or
three-fourths majority vote requirement is applied.
/2/ Sergeant Britton and Private Tracy Johnson were members of the
same unit. Private Tracy Johnson testified that petitioner told her
that he intended to tell the platoon sergeant about the relationship
between her and Sergeant Britton (Tr. 207). Carrying on a
relationship with a military subordinate could damage Sergeant
Britton's professional reputation and could violate the Uniform Code
of Military Justice under some circumstances. See United States v.
Clarke, 25 M.J. 631 (A.C.M.R. 1987); United States v. Stocken, 17
M.J. 826 (A.C.M.R. 1984).
/3/ Petitioner walked approximately 66 feet to return to his room
from the fight (GXs 1, 5). He traveled an additional 198 feet from
his room to the point where he stabbed Sergeant Britton (GX 2B).
/4/ Private Joyce Tucker had spoken with petitioner earlier in the
day. She testified that petitioner had told her "something was going
down in the unit tonight," and that "if anybody messed with him they
would get it" (Tr. 150).
/5/ All the court members were officers (Tr. 1). Petitioner did
not exercise his right to request that one-third of the court members
be from the enlisted ranks. Art. 25(c), UCMJ, 10 U.S.C. (& Supp. IV)
825(c). Under the circumstances of this case, such a request could
not be denied. Ibid.
/6/ The prosecution and defense are entitled to one peremptory
challenge each as a matter of right. Art. 41, UCMJ, 10 U.S.C. 841;
compare United States v. Carter, 25 M.J. 471 (C.M.A. 1988) (trial
judge may award an accused additional peremptory challenges to ensure
a fair trial). Had petitioner exercised his peremptory challenge in
this case, the number of members would have been reduced to four.
Because a general court-martial must have at least five members, Art.
16, UCMJ, 10 U.S.C. (& Supp. IV) 816, the exercise of a peremptory
challenge by the defense would have required the convening authority
to detail sufficient additional members to create a panel of at least
five members.
/7/ The Uniform Code of Military Justice does not provide a means
of discovering the actual vote of the panel members. Thus, it is
unkown whether petitioner was in fact convicted by a unanimous vote of
the panel or by a vote of four to one.
/8/ This Court has previously denied certiorari in several other
cases presenting substantially the same question. Mason v. United
States, cert. denied, No. 86-1935 (Oct. 19, 1987); Delacruz v. United
States, cert. denied, No. 86-1675 (May 18, 1987); Dodson v. United
States, cert. denied, No. 86-407 (Dec. 8, 1986); Garwood v. United
States, cert. denied, 474 U.S. 1005 (1985); Hutchinson v. United
States, cert. denied, 469 U.S. 981 (1984).
/9/ See also O'Callahan v. Parker, 395 U.S. 258, 261 (1969),
overruled on other grounds, Solorio v. United States, No. 85-1581
(June 25, 1987); Reid v. Covert, 354 U.S. 1, 19 (1957) (plurality
opinion); Whelchel v. McDonald, 340 U.S. 122, 127 (1950); Ex parte
Quirin, 317 U.S. 1, 40-41 (1942); Kahn v. Anderson, 255 U.S. 1
(1921); Mendrano v. Smith, 797 F.2d at 1544; King v. Moseley, 430
F.2d 732, 734 (10th Cir. 1970); Branford v. United States, 356 F.2d
876, 877 (7th Cir. 1966); Owens v. Markley, 289 F.2d 751, 752 (7th
Cir. 1961); see DeWar v. Hunter, 170 F.2d 993, 997 (10th Cir. 1948),
cert. denied, 337 U.S. 908 (1949) (court-martial panel composed
exclusively of officers to try an enlisted man does not violate the
Sixth Amendment); see generally Van Loan, The Jury, the
Court-Martial, and the Constitution, 57 Cornell L. Rev. 363 (1972);
Henderson, Courts-Martial and the Constitution: The Original
Understanding, 71 Harv. L. Rev. 293 (1957).
/10/ Petitioner erroneously suggests (Pet. 10-11 n.4) that the
exception for "cases arising in the land or naval forces" applies only
when a case arises "in actual service in time of war or public
danger." The latter phrase refers only to the "Militia" of the states,
not to the "land or naval forces" of the United States. Johnson v.
Sayre, 158 U.S. 109 (1895).
/11/ See also, e.g., Rostker v. Goldberg, 453 U.S. 57, 64-65 (1981)
(the decisions of Congress are entitled to particular deference when
they involve "Congress' authority over national defense and military
affairs").
/12/ See also Bishop v. United States, 197 U.S. 334, 339-340
(1905); Mullan v. United States, 140 U.S. 240, 245 (1891) (convening
officer's determination that trial by members junior in rank of the
accused could not be avoided was proper).
/13/ During the Revolution, the Continental Congress adopted the
British naval regulations for use by the Continental Navy. The
British regulations provided for courts-martial similar to the general
courts-martial under the British Articles of War, which required only
a simple majority to convict and sentence a defendant. Van Loan,
supra, 57 Cornell L. Rev. at 382 & n.102.
/14/ The British Articles of War required a vote of 9 of 13
court-martial members to impose the death penalty. 1 & 2 W. Winthrop,
supra, App. 943, Section 15, Art. VIII. The Articles of War did not
specify the number of votes necessary to convict a defendant at a
general court-martial or to impose any sentence other than death. The
Articles of War, however, provided that inferior courts-martial "shall
give Judgment by the Majority of Voices." 1 & 2 W. Winthrop, supra,
App. 943, Section 15, Art. XII, see R. Scott, The Military Law of
England 131 (1810).
/15/ Act of Mar. 2, 1799, ch. 24, 1 Stat. 709 (An Act for the
Government of the Navy of the United States); Act of Apr. 23, 1800,
ch. 33, Section 1, Art. 41, 2 Stat. 51 (An Act for the Better
Government of the Navy of the United States); the American Articles
of War of 1806, ch. 20, Art. 87, 2 Stat. 369, reprinted in 1 & 2 W.
Winthrop, supra, App. 984; the American Articles of War of 1874, Art.
96, reprinted in 1 & 2 W. Winthrop, supra, App. 994.
/16/ See Uniform Code of Military Justice (No. 37): Hearings on
H.R. 2498 Before a Subcomm. of the House Comm. on Armed Services, 81st
Cong., 1st Sess. 565, 1081-1082 (1949).
/17/ In 1984, Congress enacted amendments to the UCMJ to coincide
with proposed changes to the Manual for Courts-Martial. Concurrently,
the President, acting pursuant to his rule-making authority,
promulgated the current Manual, which significantly changed
courts-martial practice. In 1986, the President again amended the
Manual by requiring that findings of guilty to premeditated murder in
capital cases be unanimous. Rule 1004, Manual. Notwithstanding these
revisions, neither the President nor Congress required unanimity in
other situations.
/18/ A court of military review may affirm "only such findings of
guilty * * * as it finds correct in law and fact and determines, on
the basis of the entire record, should be approved." Art. 66(c), UCMJ,
10 U.S.C. 866(c). Although nothing in the text of the statute or its
legislative history suggests that the courts of military review must
independently apply the "beyond a reasonable doubt" standard to the
record when reviewing the sufficiency of the evidence (see Jackson v.
Taylor, 353 U.S. 569, 577 & n.8 (1957)), the military courts have read
that standard into the act. E.g., United States v. Palenius, 2 M.J.
86, 91 n.7 (C.M.A. 1977).
/19/ In Burch, the Court concluded that juries must have at least
six members, in part "to provide a fair possibility that a cross
section of the community would be represented." 441 U.S. at 135,
citing Williams v. Florida, 399 U.S. 78, 100 (1970). That goal is
inapplicable to courts-martial. The members of a civilian jury are
selected at random to represent a cross-section of the community. By
contrast, the members of a court-martial panel are deliberately chosen
on the basis of their qualifications to sit as panel-members. Art.
25, UCMJ, 10 U.S.C. (& Supp. IV) 825. The members of a court-martial
panel are drawn exclusively from the same profession as the defendant,
and they have a specialized knowledge of its workings and
expectations. Accordingly, the failure randomly to select a
court-martial panel from a pool of all servicemen, including enlisted
personnel with the same rank as the defendant, is not
unconstitutional. DeWar V. Hunter, 170 F.2d at 997 (panel composed
exclusively of officers to try an enlisted man does not violate Sixth
Amendment); United States v. McClain, 22 M.J. at 128 (Sixth Amendment
cross-section requirement inapplicable to court-martial proceedings);
see Mendrano v. Smith, 797 F.2d at 1544-1577.